The Research On The Legal Regulation Of Government Conduct In China's PPP Model

In recent years,China's economic development has achieved remarkable achievements.With the people's increasing needs for a better life,their demands for public goods and services have been boosted.In the Report of 19~thh National Congress of the China's Communist Party,it illustrated that the main contradiction in our society has been transformed into the one that between the people's growing call for better life and the imbalanced and inadequate development.The PPP(Public-Private-Partnership,or government and social capital cooperation)model,which is based on the franchise agreement,can not only enhance the cooperation between the government and private organizations,but also use the social untapped funds effectively to promote the construction of infrastructure in China.Moreover,it provides people with more and better public products and services.The participation of private capitals into PPP model has effectively solved the financial predicament of our government in infrastructure construction,which has stimulated the market vitality and improved the efficiency of PPP project construction and operation.However,the purpose of private capitals is to pursue profit in the operation,they focus more on the economic benefits that generates from the project.In contrast,the public goods attribute of the infrastructure focuses on public welfare.Therefore,the risk sharing mechanism,supervision mechanism and dispute resolution mechanism in the operation of PPP model are directly related to the success of project operation.Due to the short period of the development of PPP model in China,there is no clear legal framework to allocate the rights and liabilities of each party in PPP project.The unclear internal legal relationship of PPP,the government's credibility of its commitments,the abuse of management powers,the inadequate supervision have often led to controversies and dispute between parties,and in some cases resulted in the failure of the PPP project.Basing on these understandings,this article,from the perspective of government behavior,explores the legal framework of government behavior in the PPP model,in order to regulate such behaviors and control the power of the government in the PPP model,which would enhance the trust of the social capitals to the government,and ensure the smooth operation of the PPP project.In the PPP model,the government is both the participant of the project,and the referee that rules by law when the disputes occur.Since the obvious inequality between the government and the private sector exists,it is worthy thinking the measures to effectively limit the government's power and ensure the lawful rights and interests of the private capital.This paper centers on the legal regulation of government behavior in PPP model,and discusses the design of a reasonable system,which fits China's reality,to regulate government behavior.This paper is divided into the three parts:The first part is the introduction and the theoretical basis of such legal regulation.The introduction chapter elaborates the problems of government behavior in the PPP model,and reviews the literatures concerning the PPP model from a legal perspectige.It also covers the methodologies,the difficulties and innovations of the paper.The theory section analyzes the legal relationship within the PPP model,the concerns of legal regulation of the government behavior,and the related theories of regulating government behavior,which expounds the incomplete contract theory,power restriction theory,public goods theory and externality theory.The second part is the main body,which studies the regulation of government behavior from four aspects,which are policy making,contractual relationships,project supervision,and dispute settlement,according to such behavior in the PPP model type.These four perspectives correspond to the third,fourth,fifth,and sixth chapters.The third chapter relates to the legal regulation of government behavior in the policy making process of the PPP model.Since the huge finance demand of PPP project,the numerous parties,and the long period of construction and operating cycle,the local governments should cautiously make local PPP policy and coordinate relationship among each party based on the existing legal provisions.This can lead to the formation of a legal framework that centers on the“Budget Law”,“Government Procurement Law”and“Bidding Law”,and supplements by legal provisions of the State Council and its departments with Chinese characteristics.Meanwhile,introducing fair competition review system when making the PPP policy,is beneficial to regulate the improper competition and monopolistic conducts in this process,and fully guarantee the diversified public participation and legal rights of social capital in PPP model.The fourth chapter covers that legal regulation of government behavior in the contractual relationship of PPP,which combines the dual natures of civil and administrative laws.It is proper and reasonable to define the government's rights and liabilities within the contract.Based on the protection of public interests,the government in the PPP project has the administrative priority right.In order to secure the legitimate rights and interests of private sector and prevent the abuse of such priority right,the making of PPP contracts should base on fair competition,honesty and credibility,protect private property rights,and the principle of private law autonomy.The fifth chapter discusses the legal regulation of government behavior in PPP model project supervision.To ensure the PPP project can effectively provide public goods and services,the supervision of the project by government should be taken through the whole process from launch to exit.This process is generally divided into project access supervision,project performance supervision and project exit supervision.To effectively regulate the government's behavior in the PPP projects,it is necessary to regulate it via legislation,the national people's congress,the court system and the public.It also calls for the beforehand of fair competition review,which can reduce administrative monopolistic behaviors in the PPP project.The sixth chapter explores the legal regulation of government behavior in PPP dispute resolution.The different standpoints and interests of social capitals and governments often arise disputes between them during the implementation of the PPP project.The reasonable regulation of government behavior and security of rights and interests of social capital are the keys to the success of PPP project,in particular when considering the fact that government serves both as a disputed party and a negotiating party at the time dispute occurs.Based on the analysis and research on the current situation of PPP dispute resolution and its existing problems,this paper expounds that the incompleteness of PPP contract and government distrust are the important reasons of the dispute.In considering of the dispute resolution mechanism of PPP,it points out that it is necessary to regulate the government behavior in such process.It should not only rely the lawsuit against the government misconduct,but also depend on the role of reconciliation mechanism and“soft law”mechanism.In the dispute resolution,the burden of proof for administrative conducts and other burden of proof should be clarified,to ensure the consistency of the dispute resolution system.It also emphasizes the application of arbitration into it.The third part carries out the effective suggestions to regulate government behavior,basing on present development situation,characteristics and existing problems of China's PPP model.They include the establishment and perfection of legal system of the PPP model,the improvement of the supervision mechanism and process of the PPP project,and the role that plays by the remedy system in PPP model.In addition,this part also summarizes the conclusions of the research,points out the deficiencies in the research,and looks forward to the future research.According to the analysis and research of legal regulation of government behavior of China's PPP model,this paper not only provides some insights for the policy making,system building and legal protection of PPP project,but also properly allocate rights and liabilities of each party and ensure the smooth operation of PPP project.This paper will provide significant theoretical and practical implications of the legal regulation of PPP in China.